Another Legislative Session, Another Set Of Changes To The DUI Laws
It seems like every year, the previous year’s DUI law changes were simply not enough, so there is more “tinkering” with the DUI statutory landscape. Changes that fix prior legislative oversights,or legislation that becomes is impossible or impractical to actually implement is understandable. Inevitably, however, when the legislature revisits these, it seems to that other changes just have to be made. In fact this past legislative session, some of the most useless and ridiculous bills were proposed and thankfully died at some legislative stage (Roadblocks and Scarlett Letter License plates).
With these proposals and actual changes comes some useful amendments (Felony amendments bringing the laws up to other felony standards), but also sensational headlines that grab the public readers attention. After all what better way to increase readership, hits on a website, or encourage online comments? Advertise the sensational headlines. Headlines like “New, tougher steps on DUI sentencing,” or “Legislature OKs bill closing DUI fatality sentence loopholes.” While these headlines are not totally inaccurate, they are misleading and only provide a reader with a partial picture. As a result, I write today to simply inform. To inform you of the changes and how they change the law. Weather the changes are good or bad, I leave up to you to decide, but at least it can be done with full knowledge. The following legislative changes are all on their way to the Governor’s Desk and expected to be signed into law effective September 2011.
The bill that has passed through with dozens of changes (amendments and deletions) is 1789. The changes are as follows:
RCW 46.20.385(1)(c )(iii) now reads that: “Beginning with incidents occurring on or after the effective date of this section, when calculating the period of time for the restriction under RCW 46.20.720(3), the department must also give the person a day-for-day credit for the time period, beginning from the date of the incident, during which the person kept an ignition interlock device installed on all vehicles the person operates. For the purposes of this subsection (1)(c)(iii), the term “all vehicles” does not include vehicles that would be subject to the employer exception under RCW 46.20.720(3).” Asa result, there is still no need for an IID on employer owned vehicles driven for work purposes.
This also means that people who voluntarily place an ignition interlock device on their car after being arrested for DUI, will get credit against against the mandatory time it would be required of convicted. Voluntary means that any time it is not required as a condition of a driver’s license. For instance if a Judge orders the device as a condition of release due to a DUI arrest, the fact that DoL has not required it yet renders the installation voluntary. While many may disagree with the credit,it is hard to argue that the credit for time is bad if it provides some public protection.
RCW 46.61.502(6)(b)(iv) was amended to make DUI a regular DUI a class C felony if previously been convicted of a violation of any felony DUI or Physical Control. Previous to this amendment, a person was a Felony DUI if they were previously convicted of Vehicular Homicide, or Vehicular Assault by DUI, or of the person had 4 prior DUI charges within 10 years of a 5th DUI. This law eliminates the need for 4 priors that could have washed out by the passage of time. Previously, a 5th DUI in 10 years was a felony and if another 10 years went by and then a new DUI arrest the person would NOT be a felon, but this amendment put Felony DUI (by way of 4 priors) on par with the DUI-Homicide or Assault level. In other words, like those DUIs, there is no “washout” by the passage of time. Any subsequent DUI regardless of time, is a felony if you previously were convicted of DUI Homicide, Assault, and now Felony DUI by priors. While some consider this a loophole closed, it more accurately described as placing the felony DUI on par with every other felony crime and since felony DUI is a relatively new crime some tinkering was required.
RCW 46.61.504(6)(b)(iv) was also amendede due to it being the DUI "sister" charge. This is called Physicial Control. These are cases where the person is not actually seen driving but found in a parked car that they are in control of. It is a DUI by another name. As a result since the Physical Control statute is a different section of the code, it needed to be changed to reflect the changes described to the Felony DUI described above.
The Reckless Driving Statute (RCW 46.61.500(3)(a) & (b)) was changed to require mandatory Ignition Interlock Device (IID) for 6 month required on conviction for Reckless Driving if Reckless Driving is a reduction from DUI or Physical Control; and driver has prior DUI offense within seven (7) years. Furthermore, if the reduction is down from a case originally charged as Vehicular Homicide or Vehicular Assault by way of DUI. In other words, a second offense DUI reduced, or a case where there is insufficient evidence to convict on a DUI homicide or DUI Assault charge.
Likewise, the Negligent Driving Statute (RCW 46.61.5249(4)) was changed to reflect a reduction from DUI if a prior DUI within seven years (7),also requires a IID for 6 months.
RCW 46.20.720(2) was changed to make it mandatory for a Court to order IID for any person participating in a Deferred Prosecution due ot a DUI or Physical control charge. Previously, a mental health based Deferred did not require an IID, whereas a alcohol based Deferred Prosecution always required it. With this change, a person who has no alcohol dependency issues will be required to have an IID, for better or worse.
RCW 46.20.720(3) is the enabling statute that requires DoL to ensure the court order for IIDs on Negligent Driving and Reckless Driving Second offense convictions are enforced.
RCW 46.20.720(5) sets for the time period for the IID on the above reductions from DUI to Reckless / Negligent to six (6) months.
RCW 10.05.140 was amended to clarify that that IID period for Deferred Prosecutions be not less than the periods required for convictions. This means that is a person has a prior DUI conviction they were ordered to have an IID for 1 year. If they enter a Deferred Prosecution for a second DUI, the conviction would have required a IID for 5 years, so the Deferred Prosecution must now also require a IID for that same length of time they would have had to have the IID if convicted. While this makes sense, the jurisdiction of a Deferred Prosecution is 5 years, so a 3rd offense DUI would require a 10 year IID, but that is impossible to enforce, however, it remains to be seen if DoL will require the IID for 5 years after the completion of the Deferred.
RCW 9.94A.533(7) now requires that the 2 year enhancements on Vehicular Homicide conviction by DUI, in recognition of prior DUIs are mandatory and must be served in total confinement and run consecutive (in addition to) other sentencing provisions.
The remaining amendments were changes that permits Counties to establish special DUI courts, add a DUI court to mental health and drug courts, increases Breath testing fee from 125.00 to $200.00and designates where some of the funds must go. Furthermore, alcohol evaluations must now be sent to court AND DOL, and finally, the legislature has now set minimum requirements for the Victim Impact Panel’s that are run throughout the state.
Regardless of the rhetoric that is offered to support these changes, the changes reflect a growing legislative concern for DUI on a Washington State-wide level. As a result, a DUI in Bellingham, or Spokane, the laws will be present and less discretionary than before. The changes, particularly for a repeat DUI arrest are significant and require knowledgeable, aggressive, and uncompromising defense.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to remain silent is an important right that effects each and every DUI case, and a right that exists from the moment a driver is stopped, or seized by law enforcement. If you are stopped during this emphasis, do not forget that roadside tests are voluntary, and if arrested make sure you speak with a lawyer before a breath test is provided. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
New Year Brings Changes To DUI Laws.
The title is a little misleading, as the law on DUI in terms of the legal limit has not changed, but rather the laws related to a DUI arrest or conviction have changed. Some may say for the better, while others will strongly disagree. Regardless of the camp you may be in on this, what matters is that those who could not drive previously, now can, but with significant supervision and consequences. The changes relate to who is eligible for a Ignition Interlock Device (IID) as well as the fairly new Ignition Interlock License (IIL).
For the most part the changes create an “Extension of Eligibility” so that those previously unable to legally drive, regardless of whether they have an IID, now are able. Among the most important extensions is the ability of a those arrested or convicted of a drug related DUI and Physical Control convictions to obtain an IIs. Previously a alcohol based DUI was permitted an IIL while a drug based DUI was not. Both alcohol and drug based DUI conviction are NOW able to obtain an IIL.
Further extensions are to those who have had their licenses suspended or revoked due to a DUI related Vehicular Assault and Vehicular Homicide Arrest and Conviction. Where they were previously unable to obtain an ILL, they can now do so.
There is now and IID exception, meaning no IID is necessary on specific vehicles. So a person who ordinarily would be required to have a IID on their “personal vehicle” does not need one on vehicle “owned, leased, or rented by a person’s employer and on those vehicles whose care and/or maintenance is the temporary responsibility of the employer, and driven at the direction of a person’s employer as requirement of employment during working hours.”
This new exception allows people like mechanics to test drive vehicles they work on, or persons who job requires a rental car when they fly somewhere.
With respect to the IID and Convictions & Sentencing, the IID and requirement to obtain an IIL is now at the discretion of the Court and Judge for ALL drug and alcohol related convictions. This means that a DUI reduced to a lesser charge that is still alcohol related permits a Judge to order an IID or IIL even though there law does not specifically mandate it.
Alternatively, a Court may waive IIL application requirement if: (1) driver lives out of state with no reasonably available devices; (2) person does not operate a vehicle; or (3) not eligible for IIL. However, in such scenario’s the Court shall order other alcohol monitoring if no ILL and abstinence is ordered.
The meaning of priors within a seven and or ten year period is also now entrenched in statute, rather than the case law, although the statute is exactly the definition stated by the Supreme Court. “Within seven years” means that the arrest for a prior offense occurred within seven years before or after the arrest for the current offense; and “Within ten years” means that the arrest for a prior offense occurred within ten years before or after the arrest for the current offense.
Similarly a legislative fix from the same court case clarifies a “prior offense” in the form of a Deferred Prosecution when a second offense has been found to have been committed, yet the Deferred not yet revoked. This prevents “second offenses” as was the case previously. So as of now the legislature has again entrenched the Supreme Court ruling; the law is now that “ a deferred prosecution revoked based on a subsequent conviction for an offense, the subsequent conviction shall not be treated as a prior offense of the revoked deferred prosecution for purposes of sentencing.”
Also related to a Deferred Prosecution, it was previously the case where the person was forced to obtain an IIL and that required SR22 insurance, despite there being no license suspension. This years amendment, undoes that requirement and a IIL is no longer required for a deferred prosecution, HOWEVER an IID is STILL mandatory for at least 1 year as always.
Another legislative New Year’s resolution was to increase the penalty for an IID violation while participating in a Deferred prosecution to that of a gross misdemeanor. Previously if a person violated the IID requirement they were only at risk to have a Judge revoke the Deferred, but now face an additional sentence up to 1 year in jail and a $5,000.00 fine rather than a 90 day jail term and a $1,000.00 fine. Furthermore, the Department Of Licensing now has the authority to suspend a person license who is on a DP if they are non-compliance with IID. This does not require any order.
In addition to adding some requirments, what the legislature giveth, it taketh away. A person may remove an IID (post conviction of course) if they can 4 consecutive months without: (1) an attempt to start with a BAC of 0.04 or more; (2) failure to take or pass any retest; or (3) failure to appear at IID vendor.
Another change stems from a case closer to home. In April 2009, a jury returned a verdict in favor of Hailey French who was injured in a head-on collision with a drunk driver who had been released from a prior drunk driving arrest by a state trooper one hour and 39 minutes previously. The Whatcom County District Court Probation Department was a party in the suit due to the fact that the drunk driver had been under a court order to drive only a car equipped with an alcohol interlock device, but the probation department had failed to follow-up on the judge’s court-ordered requirement. As a result there are NOW Liability Limitations. The probation department as an agency of Government now has liability limited if probation verifies installation of IID via written documentation from IID vendor.
Additionally, violations of IIL or IIL requirements are now a gross misdemeanor, when they were previously NOT crimes.
While this is a fairly specific recitation of the changes, a person should always look up and read law with their own two eyes, or make sure that they obtain clear and concise information from an attorney well versed in the DUI laws of THIS state. As it can be seen from the above, numerous laws change and change frequently. Defense of a citizen charge with DUI is not to be taken lightly nor is it for the inexperienced, nor should a lawyer who has no DUI experience handle such a defense. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com Email:jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense and provides legal services for cases in Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket.
Bad Facts Make Bad Law: Felony DUI And Proof Beyond A Reasonable Doubt Reduced.
This week the Court Of Appeals issued a ruling that appears to lessen the prosecutions burden when it decided the issue of prior offenses for the purposes of the felony DUI statute. The ruling came from Division One of the Appeals Court, State v. Paul 2010 . Division One’s decisions are binding authority on all lower courts (Superior, District, and Municipal) that are geographically located north of Interstate 90 and east to the mountains. The only higher state court is the Washington Supreme Court and unless it is appealed to the Supreme Court, or there is a irreconcilable conflict in this area of law between Division One and future decisions from Division’s Two and Three, this case will be the final say for some time.
The question presented for the Court was “[w]hether the court or a jury must determine if a person has four or more prior offenses that qualify as a predicate offense to elevate a misdemeanor DUI to a felony?” Since this was a new issue for the court it turned to other areas of law where prior convictions elevate a crime from a misdemeanor to a felony. Specifically the Court wrote:
“under two other nearly identical statutory schemes, our appellate courts have held that while the existence of a prior conviction is an essential element that must be proved to the jury beyond a reasonable doubt, the question of whether a prior conviction qualifies as a predicate offense for purposes of elevating a crime from a misdemeanor to a felony is a threshold question of law for the court to decide.”
“[F]our prior DUI offenses is an essential element of the crime of felony DUI that must be proved to the jury beyond a reasonable doubt, [the question of] whether a prior offense meets the statutory definition and qualifies as a predicate offense is not an essential element of the crime. Rather, the question of whether a prior offense meets the statutory definition is to be decided by the court before admitting a prior offense into evidence at trial.”
As a result, the trial court looks at the evidence presented outside the presence of the jury and decides if there are in fact prior crimes, in this case 4 prior DUI convictions within 10 years of the current DUI charge, that act as predicates, or prerequisites to making the current charge a felony. This analyses by the Court was no real surprise as the law is logical and like issues are typically decided in a similar fashion. Since the issue of these priors was a “first impression” in this area of law, the Court sought guidance from other cases where priors are used to make a crime a felony
In this case, the court did in fact look at evidence of priors, but in doing this the Court encountered a slight twist because one of the defendant’s prior DUI conviction was in California, so the Court was also required to determine whether the California conviction was a “similar conviction” and therefore qualify it as a legal predicate.
The trial court and Appellant court engaged in a legal analysis comparing the elements of the crime of driving while under the influence under California Vehicle Code § 23152(a) and the Washington crime of driving under the influence in violation of former RCW 46.61.502(1). Upon seeing how similar the two states were, the California DUI conviction under California Vehicle Code § 23152(a) would have been a violation in Washington under RCW 46.61.502.
The next step of the analyses was to determine whether there were in fact four priors and while this is an expected and rational step, it is the evidence that was used to PROVE the priors is where concern lies.
Since the burden of proof rests upon the prosecution it is up to the prosecutors to prove the priors and in this case they presented evidence in the form of certified copies of court records showing a conviction for two Seattle Municipal Court convictions and the docket for the DUI conviction in Everett District Court. With respect to the 1998 California DUI conviction, the court admitted a certified copy of the complaint charging Defendant with violation of §23152(a) of the California Vehicle Code. The complaint alleges that Chambers “while under the influence of an alcoholic beverage, drove a vehicle.” The court also admitted certified copies of the California docket, the order granting a conditional sentence, and a “DUI Waiver of Rights and Plea Form.
All of these documents were admitted with NO OBJECTION from the defense attorney. A close reading of the case makes one wonder if defense counsel had some strategy in mind despite since there was no objection, but subsequent to the conviction the Defense counsel appeals and makes a new argument contrary to the trial argument and in violation of trial practice 101 as pointed out by the Court of Appeals: “it is undisputed that Chambers did not object to admission of the evidence establishing her three prior DUI convictions in Washington, she waived any claim of error as to those convictions.”
Since there was no objection the evidence relied by the trial court in the form of computer entries and unchallenged driving records the standard of proof has been substantially lowered because there was no challenge to the person or persons who made the entries, no challenge to the accuracy of the “record,” no challenge to whether the driving record was actually that of the defendant, and as a result of no objection future cases under Division One jurisdiction will unlikely be able to make these challenges with success because this case will be looked to as having the final say for some time.
This is where the burden of proof appears to have been watered down and now threatens the actual standard of proof of priors “beyond a reasonable doubt.” Trial counsel’s failure to object was a significant error, but in my opinion the bigger error was appealing this case given the facts and the record created by trial counsel. There is a saying every law student learns in law school: “Bad facts make bad law.”
Future Felony DUI defendant’s in Whatcom, Skagit, Island, San Juan, Snohomish, and King County are now bound to this ruling. The proof offered by the Prosecution in support of the priors is now going to be production of a paper trail. Rather than proof beyond a reasonable doubt, the prosecution can now simply produce a screen capture of computer docket entries and maybe a driving record that is also computer generated. Therefore the right of confrontation is also lessened along with the burden the prosecution bears, or as it may be now, no longer bears. A constitutional right with hundreds of years of historical protection appears to have been eliminated.
The crime of DUI at any level, misdemeanor or felony is serious and complicated not only for the defendant facing the charges, but as seen above has an impact upon the DUI defendant’s and citizens of Washington State when the charges are not handled by an experienced and knowledgeable defense attorney. It is not an allegation to be dealt with lightly and this is exactly why an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success is mandatory. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands at http://www.jrandslaw.com| Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.
